VSB takes up lawyer’s challenge to blog regulation

Internet-savvy lawyers are closely watching a Virginia State Bar disciplinary case set for hearing next week involving the right of an attorney to blog about his cases without posting an advertising disclaimer.

Richmond lawyer Horace F. Hunter – armed with a brief penned by First Amendment scholar Rodney Smolla – faces a VSB district committee hearing Tuesday to argue the bar is overreaching in trying to regulate what lawyers say about their work.

Bar regulators maintain the mandated disclaimer is required to avoid misleading the public about specific case results. The disclaimer would tell readers that case results depend on a variety of factors and do not predict similar outcomes in future cases.

Hunter contends his posts on the trademarked blog, “This Week in Richmond Criminal Defense,” including comments about his own cases, are not advertisements. He offered to post a disclaimer saying his writings should not be considered advertising. “One might think this would take all the oxygen out of the Commonwealth’s fears, however paternalistic they might be, and everyone could go home,” Smolla wrote in his brief.

Unpersuaded, the VSB rejected Hunter’s proposed disclaimer. Instead of clarifying Hunter’s public statements, the VSB said, the proposal “actually created the possibility of greater confusion.”

Hunter went on the offensive in April with a federal lawsuit accusing VSB officials of violating his First Amendment rights. U.S. District Judge John A. Gibney dismissed Hunter’s case.

“[A]llowing Hunter to utilize the federal courts to circumvent the state bar disciplinary process would intrude upon the province of the state court,” Gibney wrote.

The hearing on the misconduct charge against Hunter is scheduled for 9:30 Tuesday before the VSB Third District Committee, Section II, at the VSB offices in Richmond.